Case BriefsHigh Courts

Bombay High Court: S.M. Modak, J., dealt with some significant issues in a claim petition wherein a widow is earning and has prospects of remarriage.

The present matter dealt with a very interesting issue involving an appeal about the entitlement of widow to the compensation who got remarried during the pendency of petition before Motor Accident Claims Tribunal.

What is the effect of a marriage of widow on her right to claim compensation on account of the death of her husband in a vehicular accident?

Whether due to marriage, her right vanishes?

Further, the issue is whether an earning wife can be said to be dependent of her husband?

MACT did not reject the widow’s claim but allotted less share to her. Insurance company on being aggrieved with the same, came in appeal, wherein the submissions were as follows:

  • the widow was working since the beginning and she was earning separately and as such, she is not depending on the income of her deceased husband and
  • she lost her right to compensation on account of remarriage during the pendency of the petition.

Decision, Law and Analysis

Bench laid down the focus on the following issues:

a] Whether separate earnings of the widow has got any bearing on her right to claim compensation?

b] Whether remarriage of widow dis-entitles her from claiming compensation?

ISSUE OF DEPENDENCY & REMARRIAGE

Bench observed that though the tribunal had outrightly rejected the ground of remarriage, but it apportioned the amount of compensation lesser in comparison to the 2 children and mother.

While analyzing the issue, it was also stated that

The widow is certainly one of the heirs on which property of a Hindu devolves as per intestate succession. Now, it is interesting to see how the word ‘dependent’ has evolved. It has been judicially recognized that –

a] age of the deceased,

b] income of the deceased and

c] number of dependents

are 3 factors to be considered while fixing the quantum of compensation. From his earning the deceased will spend on himself and on his near relatives/dependents. So when a person dies in a vehicular accident, dependents/near relatives losses the amount contributed by the deceased towards them.

Supreme Court has laid down guidelines on how to calculate contribution to personal expenses and contribution towards dependents. It depends upon the status of the deceased (married/unmarried) and on the number of dependents.

More the number of dependents, lesser will be the contribution towards personal expenses.

Bench in view of the above discussion noted the fact that the eligibility of dependency does not come first, it comes later while arriving at the quantum of compensation. Issue of ‘legal representative’ will come first while entertaining the claim petitions.

Supreme Court in the decision of Manjuri Bera v. Oriental Insurance Company Ltd., (2007) 10 SCC 643, held that even married daughter residing with husband (though not dependent on the income of the father) being legal representative is entitled to claim compensation under Section 140 (no faulty liability) of the Motor Vehicle Act.

Punjab and Haryana High Court in Kartar Kaur. v. Manoj Kumar, 2014 SCC OnLine P&H 25130 held that

“Dis-entitling a woman on account of remarriage would go against the proposal of remarriage of widow after the death of the husband. Taking such drastic view would discourage the remarriage after the death of the husband.”

Similarly in National Insurance Company Ltd. v. Nidhi Goel, 2018 SCC OnLine P&H 6920, it is observed that –

“accepting the proposition of Insurance Company would militate against the right of widow to remarry and it would not be in public interest or in the interest of the Society at large.”

In view of the above decisions it can be found that a consistent view has been taken by all the Courts, that remarriage does not disqualify the widow from claiming compensation.

Continuing with the above analysis, Bench added that

the tribunal should consider the situation prevailing when the cause of action arises. At the time when the accident took place, the widow is the legal representative of the deceased, certainly, she is entitled to claim compensation. What we do is to determine the amount of compensation and its apportionment amongst the eligible persons. So when a widow approaches the Tribunal, she wants to exercise her right which has become part of her estate.

Hence, the Court agreed with the consistent view taken by the Courts.

APPLICATION OF MEASURES

In accordance with Supreme Court guidelines to have uniformity in arriving at the income, it can be stated that if the deceased is having 2-3 dependents, it is presumed that he spends 1/3rd on his personal expenses. If the deceased is having 4-6 dependents, it is presumed that he spends 1⁄4th of his income on his personal expenses.

CRUCIAL ISSUE

When she is having a separate income, whether the widow can be said to be depending on the income of the deceased?

There are two aspects with respect to the above issue:

One is deciding the percentage for personal expenses and towards the contribution of dependents.

Second is the apportionment of compensation which comes later.

As per the guidelines of the Supreme Court given in various judgments, if wife is considered as one of the dependents, then there is a tendency to spend more on an individual and percentage of spending on dependents will be less. If number of dependents is more, there is tendency to spend less on an individual and spend more on dependents.

In the instant case, Court observes that both the spouses are earning. Monthly salary available of the deceased is Rs 23, 431. Where salary of widow Pushpa (for the month of January 2014) had come to Rs 40,044.

Bench expressed that, Separate earning of the widow does not relieve the deceased husband from contributing towards the expenses.

To the above observation Court added that if the evidence on the point of spending by every individual spouse could have been available, this Court might have deleted the widow from the list of dependents.

Hence the Court affirmed the percentage of distribution arrived by the tribunal.

Therefore, High Court opined that case for deleting the widow from list of dependents is not made out by the Insurance Company and remarriage will divest the widow from her right to claim compensation.

APPORTIONMENT

Mother of the deceased was also having two earning sons. It is also their responsibility, so why she shall be given 30%? In fact, more attention towards the two children of the deceased should have been paid.

High Court felt that the widow does not deserve to get Rs 4,00,000 as she was already earning and prospects of re-marriage were there. She also had received service benefits of deceased and amount of L.I.C partially.

Amount was apportioned in the following manner:

Widow Rs 2,00,000  

50% of remaining amount of Rs 40,13,000 after deducting Rs 7,00,000

Son Rs 16, 56, 500
Daughter Rs 16,56,500
Mother Rs 5,00,000

[Bajaj Allianz General Insurance Company Ltd. v. Pushpa Narayan Khurde, First Appeal No. 1379 of 2018, decided on 18-12-2020]

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., modified the sum of the award granted to a widow by the Motor Accident Claims Tribunal.

The instant appeal was filed challenging the judgment and award passed by the Additional District Judge wherein the sum of Rs 70,000 with an interest of rate 7% was awarded.

Brief facts

The deceased was 62 years of age at the time of the accident. The claimant was the sole surviving legal heir of the deceased. Further, it was added that the deceased was a retired railway employee and was getting pension.

In view of the above circumstances, the pension was halved and the widow was getting Rs 14,000 which shows that she lost Rs 14,000 because of the sad demise of her husband.

MACT awarded a sum of Rs 70,000 while relying on the decision of Supreme Court in National Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC 680 holding that there was no loss of income.

Further tribunal held that claimant was the legal heir and legal representative of the deceased, the deceased was 62 years of age whose income was shown to be Rs 30,000 per month but no document was produced, hence tribunal did not believe the income to the deceased to be Rs 30,000.

Tribunal also added to its observation that the deceased had been receiving the pension of Rs 28,000 and after his death, family pension of Rs 14,000 is being received by the claimant herself.

Therefore, as the deceased was getting Rs 28,000/- approx as a pension, 50% of the same he would be spending on himself and, therefore, Rs 14,000 would be the monthly datum figure available to the widow.

Issue:

Can the claimant a widow who receives family pension be deprived of compensation is the main question which arises for consideration. If the answer to it is in the negative, what compensation is she entitled to?

Bench stated that, Tribunal ought to have considered the fact that had her husband survived, she would have got a sum of Rs 28,000 per month which has now been halved. Court stated that the multiplier applicable would be ‘7’ as the deceased was in the age bracket of 61-65 years in view of the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 which has been not considered by the Tribunal and has given reasonings which can be said to be questionable.

Further, relying on the decision of this Court in Regional Manager, UPSRTC v. Nisha Dubey, First Appeal from Order No. 3154 of 2013, no deduction from the pension is allowed.

In view of the above, total compensation of Rs 4,97,000 would be granted.

As far as the issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Supreme Court in National Insurance Co. Ltd. v. Mannat Johal, (2019) 15 SCC 260.

The claimant is the widow of a railway officer and, therefore, she is not illiterate, hence, all the amount need not be invested but shall be transferred to her account.

In view of the above, the appeal was partly allowed. [Subhadra Pandey v. Siddharth Agrawal, First Appeal From Order No. 1237 of 2018, decided on 07-12-2020]

Case BriefsHigh Courts

Chattisgarh High Court: A Division Bench of P. R. Ramchandra Menon and Parth Prateem Sahu JJ., allowed the appeal partly and modified the impugned award.

The facts of the case are such that on 04-07-2012, claimant while returning with his friend form Masturi to his village Tikari on Tata Magic (hereinafter referred to as ‘offending vehicle’), met with an accident and turned turtle wherein the claimant and other passengers suffered grievous injuries. An application was filed under Section 166 of the Motor Vehicles Act, 1988 i.e M.V. Act seeking compensation and Rs 6, 50,000 was granted vide award dated 06-01-2014 passed by the 6th Additional Motor Accident Claims Tribunal, Bilaspur, Chhattisgarh i.e. MACT. Aggrieved by the same, instant appeal was filed by the insurance company/ appellants under Section 173 challenging the impugned award.

Counsel for the appellants submitted that that on the date of accident, there was no valid and effective driving licence with driver of the offending vehicle, there was no valid permit, fitness and registration and thereby there was breach of conditions of insurance policy, hence, the Insurance Company is not liable to indemnity the injured. It was also submitted that MACT while deciding the issue with regard to breach of conditions of insurance policy has only taken into consideration the issue of driving licence and decided the issue but did not consider the ground of permit raised by appellant/Insurance Company specifically, though recorded in the impugned award.

Counsel for the respondents submitted that MACT after taking into consideration the entire pleading and evidence placed on record, has passed just and proper award, which does not call for any interference.

During investigations, permit was not produced and the owner of the offending vehicle did not present himself as witness before court though filed reply to the claim petition. It was further found on examination of other witnesses that insurance policy was issued for the offending vehicle and the vehicle was insured as ‘Passenger Carrying Commercial Vehicle’, for which, permit is necessary.

Section 66 (1) of the M.V. Act provides for the necessity for permits, which reads as under for easy reference:

“66. Necessity for permits.-(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used:

Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage:

Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not:

Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.”

The Court observed that from perusal of aforementioned provisions of Section 166 of the M.V. Act, the requirement of permit has been made mandatory for use of the vehicle as ‘Transport Vehicle’ in any public place for carrying passengers or goods.

The Court thus held that MACT erred in not considering that non-applicants 1 and 2 i.e. driver and owner of the offending vehicle failed to produce permit of the offending vehicle and in absence of it, there will be breach of conditions of insurance policy.

In view of above, appellant/Insurance Company is exonerated from its liability to satisfy the amount of compensation and the liability to satisfy the amount of compensation shall be upon non-applicants No.1 and 2 i.e. driver and owner of the offending vehicle. The Court further directed the insurance company to pay the amount as the insurance of the vehicle is not denied, it is insured as ‘Passenger Carrying Vehicle’ and later the insurance company must recover the same amount from the owner and driver of the offending vehicle.

In view of the above, appeal allowed partly and disposed off.[Oriental Insurance Company Ltd. v. Sudhir Kumar, 2020 SCC OnLine Chh 835, decided on 23-09-2020]


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Case BriefsHigh Courts

Karnataka High Court: Ashok G. Nijagannavar, J., allowed the appeal and enhanced the compensation in light of the “pay and recover” principle.

The facts of the case are such that the deceased was travelling as a Cleaner in the lorry when the driver of the said lorry drove in a rash and negligent manner and dashed against another vehicle consequent to which the deceased sustained grievous injuries and later succumbed to it. The dependents filed a petition for compensation before the Motor Accidents Claims Tribunal i.e. MACT as the deceased was the main earning member of the family and due to his untimely death, the claimants lost financial support. The MACT thereby directed to pay the compensation of Rs 5,71,000 along with interest at the rate of 6% p.a. from the date of petition till its realization. Being aggrieved by the same, the petitioner’s claimants preferred the instant appeal under Section 173(1) Motor Vehicle Act i.e. MV Act for enhancement of compensation.

Counsel for the appellants submitted that on the date of the accident the insurance policy was in force. It was further submitted that as the driver of the offending vehicle had no valid and effective DL, the insurance company is liable to pay the compensation and recover it from the owner of the offending vehicle as per “pay and recover” principle.

Counsel for the respondents submitted that as the driver had no valid and effective DL, hence the insurance company has no liability to pay the compensation.

The Court relied on judgment titled Parminder Singh v. New India Assurance Company Ltd., (2019) 7 SCC 217 and observed that as per pay and recover principle the insurance company is liable to pay compensation to the victim and later recover it from the owner of the offending vehicle.

The Court thus held that the compensation granted vide impugned order is too meagre and disproportionate and in view of the ratio laid in National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680, compensation was enhanced.

In view of the above, petition was allowed and disposed off.[Geetha Bhai v. Amanullah, 2020 SCC OnLine Kar 1878, decided by 21-01-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., while addressing the matter observed that:

“…where there are multiple claims, MACT should place all the matters before the same Tribunal and the same tribunal should consolidate the matter and decide the same.” 

The instant appeal was at the behest of the claimants preferred against the award passed by the Motor Accident Claims Tribunal.

Factual Matrix

An accident took place on 26-02-2009 when the deceased along with her husband and another person namely Harendra Singh and others were travelling. The car was being driven by the claimant i.e. the husband. Further, it has been stated that a tanker coming from the opposite direction very negligently and carelessly turned to the right side of the road and rammed into the car causing an accident in which the wife of Harendra Singh, wife of claimant 1 and one other person namely child sustained multiple injuries.

Harendra Singh’s wife died due to the injuries and claimant’s wife suffered pain for almost about 3 months due to which she was hospitalised and later died.

Tribunal

Tribunal framed several issues and came to the conclusion that the husband of the deceased namely claimant 1 who was equally negligent and written the finding of the contributory negligence thereby halving the compensation awarded to the claimants.

Matter being considered in the High Court

In the above-background, the instant matter requires to be considered. the appellants are the legal heirs of the deceased.

Legal representatives rather heirs of the deceased felt aggrieved with the tribunals’ finding on the issue of negligence and compensation as far as the decision of the tribunal on other issues was concerned they attained finality.

Out of the said accident, as has been stated above, one other claim petition was being preferred by Harinder Singh v. Kamal Singh, MACP No. 104 of 2009 under Section 166 of the Motor Vehicles Act, 1988. This matter was tried before another tribunal wherein it was decided that the driver of the truck was solely negligent and claimants were to be compensated.

The above-stated decision was placed before the tribunal whose order is impugned.

Analysis and Decision

The truck rammed into the car causing 3 casualties of persons travelling in the Maruti van and caused injuries to other inmates of the car.

Supreme Court in the decision of Sudarsan Puhan v. Jayanta Mohanty, (2018) 10 SCC 552 and UPSRTC v. Mamta, (2016) 4 SCC 172 held that the appeal is a continuation of the earlier proceedings and High Court is under the legal obligation to decide all the issues of lis and decide it by giving reasons.

Bench stated that the tribunal has committed an error which is apparent on the face of the record and is against the settled principles of law.

Court dealt with the issue in the instant case under separate heads:

Issue of Negligence even in absence of applicability of the doctrine of res judicata and whether the same was rightly decided by the tribunal

Negligence: It means the failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not.

If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of “res ipsa loquitur” meaning thereby “the things speak for itself” would apply.

Contributory Negligence: A person who either contributes or is co-author of the accident would be liable for his contribution to the accident having taken place.

Supreme Court recently in the decision of Archit Saini v. Oriental Insurance Company Ltd., (2018) 3 SCC 365, considered the principles of negligence.

In the decision of Khenyei v. New India Assurance Company Ltd., 2015 LawSuit (SC) 469, the question of joint and several liability was considered.

In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas, in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of the combination of the negligence of two or more other persons.

Hence, it can be seen that there is a difference between contributory and composite negligence.

Supreme Court in the decision of T.O. Anthony v. Karvarnan, (2008) 3 SCC 748 has held that in case of composite negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately.

Qua applicability Of Doctrine Of Res Judicata where Decision On Negligence Was Decided By competent Tribunal in Claim Arising Out Of The Same Accident :

Doctrine of res judicata applies even if the decision by the earlier court is right or wrong but if it has attained finality between parties the doctrine shall apply and issues decided.

In light of the Gujarat High Court’s decision in United India Insurance Co. Ltd. v. Lajibhia Hamirbhai, the issue of negligence will operate as res judicata.

It is held in the said case that where the parties in two petitions are same, except the claimant, the decision by the tribunal in petition decided earlier, would operate as ‘res judicata’ as far as the issue of negligence is concerned in a subsequent petition.

Supreme Court’s decision in Ishwardas v. State of M.P., (1979) 4 SCC 163, it was held that in order to sustain the plea of res judicata, it is not necessary that all the parties to the litigations must be common. All that is necessary is that the issue should be between the same parties or between the parties under whom they or any of them claimed.

In the instant case, the claimants were being heirs of the deceased who succumbed to the injuries and qua them even if the tribunal was of the opinion that the driver of the car was negligent therefore it was a case of composite negligence.

Court concluded that there was no rebuttable evidence before the tribunal to hold the driver of the car also negligent. Tribunal misdirected itself in venturing to decide the issue afresh without discussing why he would not follow the earlier decision, therefore the said decision required modification.

Question of Legal Representative 

Section 2 (11) of the Code of Civil Procedure defines the term ‘legal representative’.

In the Supreme Court decision of GSRTC v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234, it was held that for claiming compensation under either of the Acts the term legal cannot be given a narrow meaning as ascribed in Fatal Accidents Act 1855. Major, married son & earning son of the deceased can claim compensation. Dependency is not basic criteria for relief in accident cases to the claimants if they are a legal heir or legal representative of the deceased.

Legal Representative of Owner of Vehicle

Claimants before this Court and tribunal are the legal representatives of the deceased as they are husband and children who fall in Class-I heirship.

Hence, in view of the above, the deduction of compensation of claimant 1 by the tribunal cannot be sustained as he was claiming as an heir and not the driver or injured.

Compensation

Relying on the decision of the Supreme Court in Laxmidhar Nayak v. Jugal Kishore Behera, (2018) 1 SCC 746, it was held that the income of the housewife in the year 2009 would be Rs 4,000 per month, the amount would be Rs 48,000 per annum, to which as the deceased was 38 years of age, 25% will have to be added as she was self-employed.

Hence, the appeal was partly allowed and the Judgment and Decree passed by the tribunal shall stand modified to the aforesaid extent.

While parting with the judgment, the Court held that a direction is required to be given to all tribunals in the State that where there are multiple claims, MACT should place all the matters before the same Tribunal and the same tribunal should consolidate the matter and decide so that the situation as it arose in the present matter may not arise.[Dharam Veer v. Kamal Singh, 2020 SCC OnLine All 1404, decided on 26-11-2020]


Advocates who appeared for the matter:

Counsel for Appellant:- Mohan Srivastav
Counsel for Respondent:- Rahul Sahai, K.K.D

Case BriefsHigh Courts

Kerala High Court: Writ petition has been allowed by Sathish Ninan, J., finding merits in the petitioner’s arguments and consequently setting aside the order dated 6-01-2020 in I.A.No.4009 of 2019 in O.P. (M.V). No. 997 of 2016 delivered by the Motor Accident Claims Tribunal, Mavelikarra (MACT).

The petitioner is aggrieved by the dismissal of his application I.A. No. 4009 of 2019 and has hence filed this petition before the Court. The reason behind dismissal by the MACT is that a reference has already been made to the Board attached to the District Hospital, Mavelikara subsequent to which a disability certificate has been issued.

Counsel for the petitioner, Rinny Stephen Chamaparampil has submitted that as a direct result of the accident in question, the petitioner has suffered serious injuries including that to his brain which has led to neurological issues. The medical board of the district hospital, Mavelikara which evaluated the petitioner did not consist of a neurologist. Given the petitioner’s neurological disorders, It is pertinent and necessary that a neurologist’s assessment be made.

Upon careful perusal of the medical certificate, the Court found substance in the petitioner’s arguments and discovered that the medical board did not consist of a neurologist which is unreasonable and makes the medical certificate unsustainable.

In view of the above, Court has allowed the writ petition setting aside MACT’s order dated 06-01-2020. The Court also referred the petitioner to the medical board of medical college hospital, Alappuzha for complete assessment by the board including a neurologist. [Arun Kumar v. Royal Sundaram Alliance Co. Ltd., 2020 SCC OnLine Ker 4526, decided on 19-10-2020]


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Case BriefsHigh Courts

Bombay High Court: V.L. Achliya, J., while addressing the issue with regard to the interest on compensation awarded in a motor accident case, observed that,

“…discretion vests with the tribunal to award the interest at ‘such rate’ and from ‘such date’ over the compensation awarded.”

Appellants being aggrieved by the decision of the Motor Accident Claims Tribunal preferred this appeal with a limited challenge of award of interest.

Claimants presented a claim petition under Section 166 of the Motor Vehicles Act seeking compensation of Rs 2 lakhs on account of the accidental death of the deceased who dies in a motor accident.

At the time of the accidental death, the deceased was earning Rs 6,000 per month.

Claimants assessed the compensation to be payable as Rs 14,51,000 but restricted the claim petition to Rs 2 lakhs.

Motor Accident Claims Tribunal, Parbhani allowed the claim petition and awarded compensation of Rs 3,64,500 [inclusive of NFL] with interest @ 6% per annum from the date of petition till realization.

Being dissatisfied with the quantum of compensation awarded by the Tribunal, the claimants have preferred Appeal.

In the first appeal, Appellate Court had remanded the case to the Tribunal for deciding the same afresh. While remanding the case, Appellate Court observed that the amount already withdrawn by the claimants under the earlier award would be retained by them and the same shall be subject to further order to be passed by the tribunal.

Further, the Tribunal awarded the compensation of Rs 10,22,208 making the respondent liable to pay the same. Tribunal directed that after deducting the compensation amount of Rs 3,64, 500 which was awarded earlier the claimants shall entitle to recover the balance amount with an interest of 6% per annum from the date of passing Award till its realization.

Aggrieved with the interest from the date of passing of the Award the appellants preferred this appeal.

Decision

Bench referred to Section 171 of the Motor Vehicles Act which provides for the award of interest over the compensation awarded which spells out that discretion vests with the tribunal to award the interest at ‘such rate’ and from ‘such date’ over the compensation awarded.

There is no statutory obligation cast upon the Tribunal to award the interest from the date of making application for compensation. The only restriction that has been cast upon Tribunal under Section 171 of Motor Vehicles Act is to ensure that interest to be awarded be a simple interest and same shall be payable not earlier than the date of making claim.

Thus, except the embargo cast upon that interest can not be awarded from the date earlier to date of making claim, no other restrictions have been imposed upon the discretion of the Court/ Tribunal to award interest.

To understand the meaning of Section 171 of the Motor Vehicles Act, Court referred to the decision of the Supreme Court in Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148.

Further, the bench stated that no hard and fast rule can be laid down as to the rate at which interest to be awarded and date from which such interest to be payable.

While awarding interest, the Tribunal has to take into consideration the facts and circumstances of individual case.

Section 171 of the Motor Vehicles Act does not provide the rate at which interest has to be payable nor the date from which interest to be awarded.

Adding to the above, Court stated that the only restriction that has been put under Section 171 of the Motor Vehicles Act over the exercise of powers of the Tribunal is not to award interest from the date earlier to fling of claim petition and interest to be awarded to be simple interest.

Hence tribunal’s order is clear and unambiguous and the present appeal was dismissed in light of the same. [Sangita v. Allanur, 2020 SCC OnLine Bom 931, decided on 24-07-2020]

Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., while addressing a motor accident claim, observed that,

Once, the policy is contractual in nature and the parties have signed the agreement, then such a contract cannot be construed or brought within the ambit of statutory liability.

The Cholamandalam MS General Insurance Company Limited is the appellant. Respondent/Owner of Tata Indica Tourist Taxi TN-32-L-8595 dashed against the palm tree on the roadside due to unavoidable reasons, causing road traffic accident.

Respondent filed the claim petition under Section 163 of the Motor Vehicles Act seeking compensation of Rs 2,00,000 from the Insurance Company.

The Claim Petition was filed only against the appellant/Insurance company as the respondent car was insured with the appellant/Insurance company.

Appellant though defended the claim petition on the ground that the respondent was not some third party infcat he was the owner of the vehicle, therefore no statutory coverage in terms of Section 147(1) of the Motor Vehicles Act, 1988 can be granted.

The Claim Petition was filed under Section 166 of the Motor Vehicles Act. However, the Tribunal has referred the Claim Petition as if it was filed under Section 163A of the Motor Vehicles Act. However, misquoting of the provision could not disentitle the claimant from availing the rights.

Tribunal directed the Insurance Company to pay the compensation to the respondent.

Bench on perusal of the facts and circumstances of the present matter, stated that in the absence of any statutory liability on the part of the Insurance company, the provisions of the Motor Vehicles Act cannot be invoked nor an adjudication can be done before the Tribunal.

The very purpose and object of the Motor Accident Claims Tribunal are to adjudicate the Claim Petitions and grant ‘just compensation’ with reference to the provisions of the Motor Vehicles Act.

If a particular Personal Accident Policy is contractual in nature, then statutory liability cannot be fixed on the Insurance company.

Contractual liability cannot be equated with statutory liability.

Owner’s Package Policy with reference to the Personal Accident Cover for owner-cum driver is contractual in nature. There is no third party involvement with reference to the Personal Accident Cover.

Tribunal granted compensation beyond the agreed contract between the parties to the Personal Accident Cover.

The Tribunal is bound to see the nature of the insurance policy as well as the coverage with reference to the terms and conditions stipulated, which were agreed between the parties.

Court added that in the vent of no coverage under the policy, the insurance company cannot be held liable to pay compensation.

No person is entitled to claim any benefit beyond the scope of the terms and conditions agreed between the parties.

MV Act being a Special Legislation and the Motor Accident Claims Tribunal constituted to deal with the Accident Claims specifically under the provisions of the Motor Vehicles Act, the tribunal has no jurisdiction to deal with all other policies issued by the Insurance Company, which all are contractual in nature and the terms and conditions agreed between the parties specifically.

Insurance Policy

Motor Vehicle policies are issued by the Insurance company for the purpose of grant of compensation and the language employed is “Compensation”. However, the Personal Accident Coverage Policy reveals that it is “benefit” is to be granted.

Motor Accident Policies are strictly within the ambit of the provisions of the Motor Vehicles Act. The Personal Accident Coverage Policy is strictly in accordance with the terms and conditions agreed between the parties.

Court also added that the tribunals are bound to look into the nature of the Policy at the first instance, before entertaining the Claim Petition as the tribunal cannot adjudicate the terms and conditions agreed between the parties in a contract and grant compensation under the Motor Vehicles Act.

In the present case, the Personal Accident Coverage Policy has been agreed between the insurance company and respondent under the Personal Accident Coverage Policy of amount Rs 2,00,000.

For availing the benefit of the Personal Accident Coverage Policy, the respondent/claimant has to establish the nature of the ‘disablement’ and the same is to be established before the competent Court of law and the Motor Accident Claims Tribunal is not empowered to entertain the Claim Petition under the Motor Vehicles Act.

Hence if the Insurance Company has deposited any award amount before the Tribunal, then they can withdraw the said amount with accrued interest.[Cholamandalam MS General v. Ramesh Babu, 2020 SCC OnLine Mad 2164, decided on 02-09-2020]

Case BriefsHigh Courts

Allahabad High Court: Attau Rahman Masoodi, J., allowed the appeal and modified the impugned order by applying the principle of res judicata.

The factual matrix of the case is such that the present appeal has arisen out of the judgment and award dated 16-02-2016 delivered by Motor Accident Claims Tribunal (MACT) Lucknow in Claim Petition No. 275 of 2007 whereby compensation along with interest was awarded to the claimant who suffered serious eye injury. The accident involved two vehicles i.e., a truck and a car whereby the truck was insured by the appellant.

The correctness of the award is in question whereby the entire liability has been imposed on the appellant although the case was that of composite negligence and the tribunal ought to have considered the judgment delivered by MACT Gonda in the same matter. The appellant has also questioned the multiplier applied for calculation of the claim.

A plea of finality on the aspect of proportionate liability was advanced by the counsel for the appellant, Bhanu Prakash Dubey and Kartikey Dubey in the subsequent proceedings before MACT Lucknow on the basis of the judgment delivered by MACT Gonda. It was further submitted that since the judgment rendered in the earlier proceedings concerns the same accident, therefore, this issue too was liable to be decided in the manner already settled between the parties.

It was contended by Alka Dubey, counsel for the respondent that MACT Lucknow has not committed any error since it has exclusive jurisdiction and is not bound by Section 11 CPC.

The Court referred to Section 169 of Motor Vehicle Act, 1988 and Rules 209, 215, 220 of U.P. Motor Vehicle Rules, 1998 while deliberating over the present matter and observed that that the MACT is obligated to frame the issues on which the right decision of the claim appears to depend.

The Court relied on the judgment titled Canara Bank v. N.G. Subbaraya Setty, (2018) 16 SCC 228 and held that the findings of MACT Lucknow are not justifiable as it should have considered the objections of the appellant and weighed the same in accordance with law. The principle of res judicata was applicable between the parties and the same should have been applied on the aspect of proportional liability of both the parties, accordant with the earlier judgment/award.

Thus, the Court modified the award rendered by MACT Lucknow by fixing the liability to pay compensation equally to both the appellant and respondent. With respect to the appellant’s contention regarding multiplier, the Court accepted the same and held that MACT Lucknow ought to have applied the multiplier as 16 based on the age of the claimant.

In view of the above, the impugned judgment/award was modified to the aforesaid extent and the appeal was accordingly disposed of. [New India Assurance Co. Ltd. v. Vikas Sethi, 2020 SCC OnLine All 921, decided on 31-07-2020]

Case BriefsHigh Courts

Bombay High Court: M.G. Giratkar, J., allowed an appeal filed against the order of the Motor Accidents Claim Tribunal (“MACT”) whereby the appellants-claimants were granted a compensation of Rs 3.7 lakhs.

A boy aged 7 years died in a motor accident. Considering the claim raised by the appellants (parents of the deceased), the MACT granted a compensation of Rs 3.7 lakhs by taking into consideration a notional income of Rs 20,000 per year. Against that order, the appellants filed the instant appeal seeking enhancement in the amount of compensation granted.

Monali Pathade, Advocate, appeared for the appellants. She submitted that the deceased was helping his father with his business. On the other hand, Anita Mategaonkar, Advocate, represented the insurer — Oriental Insurance Co. Ltd.

The High Court noted that as the MACT, the deceased was a brilliant student and had a bright future. The Court then referred to the decision of the Supreme Court in Kishan Gopal v. Lala, (2014) 1 SCC 244, where the deceased boy aged about 10 years was assisting in his father’s agricultural work. In that case, the Supreme Court took into consideration the drastically falling rupee value and assessed the notional income of the deceased at Rs 30,000 per annum and adopted a multiplier of 15.

The High Court observed that “notional income in the Second Schedule of Section 163-A of the Motor Vehicles Act, 1988, was inserted long back.” Accordingly, the Court held that in view of the Supreme Court decision in Kishan Gopal v. Lala, (2014) 1 SCC 244, the appellants were entitled to an increased compensation of Rs 5 lakhs along with the interest of 7.5% per annum from the date of filing of the claim petition till its realisation. [Praveen v. Baby Ulhahnan, 2020 SCC OnLine Bom 194, decided on 30-01-2020]

Case BriefsHigh Courts

Madras High Court: The Bench comprising of N. Kirubakaran, J., in an appeal filed against the judgment and decree of Motor Accidents Claims Tribunal (MACT), observed that,

People are dying or injured due to drunken driving but also the dependants of those persons are lost because of this “dangerous liquid” that too being sold by the Government for the purpose of money violating Article 21 of Constitution of India. It is sad to note that the Government itself is doing this unwarranted business only for the sake of raising revenue.”

“70% of the accidents are caused only because of either drunken driving or by intoxication.

In the present case, the circumstances which led the Court to observe the above are, present appeal has been preferred by Transport Corporation against the judgment and decree of MACT. Tribunal had fixed the negligence on the part of the driver of the appellant Transport Corporation bus and awarded Rs 5,69,000 for legal heirs of deceased allegedly earning Rs 15,000 per month.

Facts are that, the deceased was trying to cross the road when he was knocked down by the bus belonging to the appellant Transport Corporation, which was driven rash and negligently.

Tribunal found that the accident was caused because of rash and negligent driving of the Transport Corporation bus. The award of Rs 5,60,000 granted by the tribunal was challenged in the Court.

Contentions, as presented by the counsel for appellant Mr Prabhakaran, was that, deceased emerged from TASMAC shop after taking liquor without noticing the traffic, he crossed the road and dashed himself against the bus. Therefore the accident was invited by a drunken man and therefore, no negligence could be fixed on the driver of the Transport Corporation, Further, Mr R Karunanidhi counsel for respondents supported the award and sought enhancement of compensation.

Conclusion

“How liquor spoils many families and takes away precious lives of numerous persons is very well exhibited in this case.”

High Court while concluding its decision stated that, no evidence was on record to show that the deceased was under the influence of alcohol. Also, nothing in the post-mortem certificate was present in regard to the presence of alcohol in the deceased’s stomach. Tribunal had rightly relied upon the post-mortem certificate to show that the deceased was not under intoxication.

Finding of the Tribunal is modified to the effect that the driver was negligent to the extent of 85% only. Court following the Supreme Court judgment of Syed Sadiq v. United India Insurance Co. Ltd., (2014) 2 SCC 735 stated that since the deceased was 40 years old, 50% should be added towards future prospects and fixed the monthly income at Rs 9,750. Consortium enhanced to Rs 40,000 as per the Supreme Court’s judgment in National Insurance Co. Ltd. v.  Pranay Sethi, (2017) 16 SCC 680.

High Court further in an endeavour to do justice by invoking Order 42 Rule 33 CPC and Section 151 CPC and Article 22 of Constitution of India enhanced the compensation to Rs 13,00,000. In view of the above, the appeal was dismissed. [T.N. STC v. Ammavasi, 2019 SCC OnLine Mad 817, Order dated 11-03-2019]

Case BriefsHigh Courts

Sikkim High Court: A Single Judge Bench comprising of Meenakshi Madan Rai, Acting CJ. dismissed a petition filed for condonation of 50 days delay in filing appeals against the order of Motor Accident Claims Tribunal whereby compensation was awarded to the claimants.

The MACT (West Sikkim) had awarded certain amount of compensation to the respondent claimants. The appeal was preferred thereagainst by the petitioner but only after a delay of 50 days. The petitioner filed the instant petition for condonation of such delay citing various reasons. The High Court, however, was not inclined to allow the petition and condone the delay. The High Court referred to the Supreme Court decision in Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649. The following principles were, inter alia, reiterated by the High Court which is to be kept in mind while deciding a petition for condonation of delay:

  • Court to be satisfied that the appellant was prevented by sufficient cause in preferring the appeal on time.
  • Appellant had to put forth bona fide grounds for delay besides establishing that the delay was not caused due to negligence.
  • Length of delay is not a consideration. Each case is distinguishable from the next.
  • ‘Sufficient Cause’ should be given a liberal interpretation to ensure that substantial justice is done.
  • It has to be kept in mind that expiration of period of limitation gives rise to a right in favour of a decree-holder; this right is accrued should not be lightly disturbed.

In the instant case, the High Court held that in the gamut of facts and circumstances put forth for the delay, it was but relevant to opine that the petition was filed with a nonchalant attitude reflecting negligence, inaction and lack of bona fides, and being devoid of merits. The petition, thus, did not deserve indulgence of the Court. Consequently, the Court was not inclined to exercise jurisdiction in favour of the petitioner. Accordingly, the petition was dismissed. [Shriram General Insurance Co. Ltd. v. Dik Bir Damai,2018 SCC OnLine Sikk 190, Order dated 17-09-2018]

Case BriefsHigh Courts

Sikkim High Court: A Single Judge Bench comprising of Meenakshi Madan Rai, Acting CJ. dismissed an application for condonation of 115 days’ delay in filing the appeal, filed under Section 173(1) of Motor Vehicles Act, 1988.

The appeal was to be filed against a decision of Motor Accident Claims Tribunal. However, there was a delay of 115 days in filing the appeal, the purported reason of which, according to the applicant, being the departmental procedure of approvals before filing an appeal. It was submitted that the delay was neither intentional nor willful.

The High Court perused Section 173 and observed that it was to be seen whether the applicant was prevented by sufficient cause from preferring the appeal in time. The grounds as taken by the applicant were considered by the Court, which then held that the conduct of the applicant cannot be said to be beyond reproach. The impugned judgment was pronounced ex parte as the applicant failed to appear before the MACT. Further, the file, while seeking the opinion of various officers of the Company, was sent from one desk to another. It was observed that ‘justice’ means justice to the applicant as well as the respondent. The Court held the conduct of the applicant to be lackadaisical and, hence, rejected the application filed by the applicant. [Shriram General Insurance Co. Ltd. v. Kezang Kazi, 2018 SCC OnLine Sikk 128, dated 03-07-2018]